MUHAMMAD QASIM and others vs MOUJUDDIN and others

' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 9-12- 1991 passed by a learned Single Judge of the High Court of Sindh in Miscellaneous Civil Appeal No, 4 of 1991, filed by the present appellants against the order dated 11-2-1991 of the learned Additional District Judge, Naushehro Feroze, whereby he dismissed the appellants' application for re- admission of the appeal and application under section 5 of the Limitation Act.

2. The brief facts are that the respondents/plaintiffs filed Suit No, 10 of 1982 before the Civil Judge, Naushehro Feroze for declaration and injunction in respect of the suit land, which was contested by the appellants/defendants. However, eventually it was decreed on 28-10-1987. Against the above judgment and decree, the appellants filed Civil Appeal No, 184 of 1987. The above appeal came for hearing inter alia on 8-7-1989 and 29-7-1989, when the following orders were recorded in the diary:- 'Diary dated 8-7-1989.

' Parties' counsel present, at the request of parties order on order-sheet. Put off to 29-7-1989.

(Sd.) Reader."

"29-7-1989.

' Parties called absent. Parties, counsel are present. P.O. Is on earned leave, Put off to 26-8-1989 for final hearing.

(Sd.) Reader."

' When on 26-8-1989 the above appeal came up for hearing, the counsel for the respondents was present but none appeared for the appellants up to 1-45 p.m. The appeal was, therefore, dismissed in default and for non-prosecution by the learned Additional District Judge.

3. It appears that after the expiry of nearly 13 months, the appellants filed the above two applications which were dismissed by the learned Additional District Judge, Nawabshah, by his above order dated 11-2-1991 on the ground that the above application for re-admission under Order XLI, Rule 19 read with section 151, C.P.C. Which was filed on 25-9-1990 was time-barred and that in the application under section 5 of the Limitation Act, not sufficient cause was shown.

Against the above order, the appellants filed the above miscellaneous civil appeal, which was dismissed by the impugned judgment on the ground that not sufficient cause was shown for condonation of the delay in the application under section 5 of the Limitation Act. It was also held that Article 168 of the First Schedule to the Limitation Act was applicable and not Article 181 thereof for the above application under Order XLI, Rule 19, C.P.C. Thereupon, the appellants filed a petition for leave to appeal, which was granted to consider, whether on 26-8-1989, which was a date given by the Reader of the Court and not by the Presiding Officer, the appeal could have been dismissed for non-prosecution. Reliance was placed on the case of Nowsheri Khan v. Said Ahmad Shah (1983 SCM R 1092).

4. In support of the above appeal, Mr. M.M. Aqil Awan, learned counsel for the appellants, has vehemently contended that since 26-8-1989 was fixed by the Reader of the Court for final hearing of the appeal and not by the Presiding Officer, the above date could not have been treated as a date of hearing. According to him, the order of dismissal of the appeal passed on 26-8-1989 was void and nullity in law. His further submission was that the learned Judge in Chambers erred in not appreciating that as the above order of dismissal was nullity in law, Article 181 of the First Schedule to the Limitation Act was applicable to the appellants' application under Order XLI, Rule 19, C.P.C. For re-admission, for which the period of limitation was three years and not 30 days as provided under Article 168 of the First Schedule to the Limitation Act. To reinforce the above submission, he has relied upon the case of Nowsheri Khan (supra).

5. In the above case, this Court while allowing an appeal against the judgment of a learned Single Judge of the Peshawar High Court dismissing civil revision petition against the refusal of the District Judge to restore the appeal, held that if a date to which the hearing was adjourned was a date not fixed by the Court but by Moharrir or Reader, the same could not be treated as a date of hearing in terms of Order XLI, Rule 17, C.P.C. On the question of limitation, the following observations were made:-- "In these circumstances, we are of the view that the order of the learned District Judge dated 16-9- 1976 to dismiss the appeal in his absence without duly serving him for the said date was void and a nullity because the date 16-9-1976 could not be considered to be 'the day when the appeal was called on for hearing'. In these circumstances, no question of any limitation arose and the application for restoration of the appeal dismissed for non-prosecution should have been entertained and accepted and not dismissed as barred by time, especially when it was filed without any undue delay."

6. There is no doubt that the above-cited case is distinguishable from the case in hand, inasmuch as in the former case, none was present for the appellant when the date was given and secondly the application for restoration was filed without any delay, but in our view, the above distinguishing features will not make any difference if we were to hold that 26-8-1989 could not be treated as a date of hearing for the purpose of Order XLI, Rule 17, C.P.C. For the reason referred to in the above- quoted observations.

7. Since the above order of dismissal of the appeal for non-prosecution dated 26-8-1989 was void and nullity, the appropriate Article applicable was Article 181 of the First Schedule to the Limitation Act and not Article 168 thereof. In this view of the matter, the appellants' application for re- admission of the appeal could not have been treated as time-barred. We would, therefore, allow the above appeal, set aside the two judgments of the Courts below and would grant the appellants' application for re-admission of the appeal and would remand the case to the learned Additional District Judge with the direction to hear the appeal on merits and decide the same in accordance with law. However, there will be no order as to costs.